nettime's avid reader on Fri, 4 Oct 2013 11:03:00 +0200 (CEST)

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<nettime> A CEO who resisted NSA spying is out of prison.

A CEO who resisted NSA spying is out of prison. And he feels ‘vindicated’
by Snowden leaks.

By Andrea Peterson, Published: September 30 at 12:07 pmE-mail the writer
Both Edward Snowden and Joseph Nacchio revealed details about some of the
things that go on at NSA headquarters in Fort Meade. (REUTERS/NSA/Handout)

Both Edward Snowden and Joseph Nacchio revealed details about some of the
things that go on at NSA headquarters in Fort Meade. (NSA/Reuters)

Just one major telecommunications company refused to participate in a
legally dubious NSA surveillance program in 2001. A few years later, its
CEO was indicted by federal prosecutors. He was convicted, served four and
a half years of his sentence and was released this month.

Prosecutors claim Qwest CEO Joseph Nacchio was guilty of insider trading,
and that his prosecution had nothing to do with his refusal to allow spying
on his customers without the permission of the Foreign Intelligence
Surveillance Court. But to this day, Nacchio insists that his prosecution
was retaliation for refusing to break the law on the NSA's behalf.

After his release from custody Sept. 20, Nacchio told the Wall Street
Journal that he feels "vindicated" by the content of the leaks that show
that the agency was collecting American's phone records.

Nacchio was convicted of selling of Qwest stock in early 2001, not long
before the company hit financial troubles. However, he claimed in court
documents that he was optimistic about the firm's ability to win classified
government contracts — something they'd succeeded at in the past. And
according to his timeline, in February 2001 — some six months before the
Sept. 11 terrorist attacks — he was approached by the NSA and asked to spy
on customers during a meeting he thought was about a different contract. He
reportedly refused because his lawyers believed such an action would be
illegal and the NSA wouldn't go through the FISA Court. And then, he says,
unrelated government contracts started to disappear.

His narrative matches with the warrantless surveillance program reported by
USA Today in 2006 which noted Qwest as the lone holdout from the program,
hounded by the agency with hints that their refusal "might affect its
ability to get future classified work with the government." But Nacchio was
prevented from bringing up any of this defense during his jury trial — the
evidence needed to support it was deemed classified and the judge in his
case refused his requests to use it. And he still believes his prosecution
was retaliatory for refusing the NSA requests for bulk access to customers'
phone records. Some other observers share that opinion, and it seems
consistent with evidence that has been made public, including some of the
redacted court filings unsealed after his conviction.

The NSA declined to comment on Nacchio, referring inquiries to the
Department of Justice. The Department of Justice did not respond to The
Post's request for comment.

Snowden leaked documents about NSA spying programs to the public and
arguably broke the law in doing so. In contrast, Nacchio seems to have done
what was in his power to limit an illegal government data collection
program. Even during his own defense, he went through the legal channels he
could to make relevant information available for his defense — albeit

The programs that were revealed are also substantially different in nature,
if not in content. The Bush-era warrantless surveillance programs and data
collection  programs were on shaky legal ground, based on little more than
the president's say-so. That's why telecom companies sought and received
legal immunity from Congress for their participation in 2008. But that same
update also expanded government surveillance powers. Some observers argue
that some of the NSA's spying programs are still unconstitutional. But at a
minimum, these programs were authorized by the FISC and disclosed to
congressional intelligence committees.

Nacchio told the Wall Street Journal, "I never broke the law, and I never
will." But he never got a chance to present to the jury his theory that his
prosecution was politically motivated.

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